Kanubhai Vaghabhai Chavda vs State of Gujarat

Z.K. Saiyed, J.—This appeal is directed against the judgment and order dated 16th January, 1998 passed by the learned Additional Sessions Judge, Nadiad in Sessions Case No. 146 of 1994, whereby the Appellant has been convicted for the offences punishable under Sections 325 and 323 of the Indian Penal Code. The learned trial Judge was pleased to convict the Appellant u/s 325 of the Indian Penal Code and ordered to undergo simple imprisonment for a period of one year and also imposed fine of Rs. 500/-, and in default of payment of fine, ordered to undergo simple imprisonment for a further period of three months. The learned trial Judge was also pleased to convict the Appellant for the offence punishable u/s 323 and ordered to undergo simple imprisonment for a period of one month. However, both the sentences were ordered to run concurrently.

The case of the prosecution is that on 20th June, 1993 at about 20.45 hours, the Appellant along with four other accused forming an unlawful assembly and attacked on the father of the complainant with deadly weapons. It is also the case of the prosecution that the Appellant, who was having Dharia in his hand, had given Dharia blow on the head of the father of the complainant. The original accused No. 2 caught hold of the father of the complainant and the Appellant gave second blow of Dharia on the left side of abdomen of the father of the complainant. The original accused No. 3 had given a stick blow to the complainant''s father. Therefore, the complainant, his mother, his maternal aunty, his sister intervened and made shouts. It is also the case of the prosecution that the accused had also given stick blow to the complainant''s sister. Thereafter, as the other people of street gathered, the accused had run away.

Therefore, a complaint to the said effect was registered with Vaso Police Station. Thereafter, necessary investigation was carried out and statements of several witnesses were recorded. Panchnama of seen of offence came to be drawn. Even from the possession of the present Appellant, weapon Dharia was seized and panchnama was also drawn. During the course of investigation, as sufficient material was found against the accused, they were arrested. After completion of investigation, charge-sheet was filed in the competent Court but, the same was committed to the Sessions Court, Nadiad for trial.

During the trial, the prosecution has examined several witnesses and also produced on record documentary evidence to prove their case.

At the end of trial, the Court below convicted the accused and imposed sentenced as narrated above and therefore, the Appellant has filed the present appeal.

Mr.B.C. Dave, learned Counsel for the Appellant, has submitted that the dispute between the parties have amicably settled outside the Court on account of the intervention of responsible people of the community. Mr. Dave has also contended that the Appellant and the complainant and the injured witnesses are residing in same village. He has further submitted that no untoward incident has taken place between the parties after the alleged incident and that the original injured witness has willingly and under no duress has sought permission of this Hon''ble Court to compound the offences.

In support thereof, the learned Counsel has produced the affidavit dated 28th March, 2011 filed by the complainant and the injured person at one side and the Appellant-original accused at other side. In the said affidavit, it has been stated that the parties have amicably settled the dispute between them and they are willing to compound the offences. The learned Counsel has, therefore, prayed that the Appellant may be released by treating the sentence already undergone by the Appellant as sufficient.

I have given my anxious consideration to the case and also the plea put forward for seeking permission to compound the offences. I have also examined the provisions of Section 320 of Code of Criminal Procedure which deals with compounding of offences.

The parties are residents of village Mitral, Taluka Nadiad, District Kheda and no untoward incident had taken place after the alleged incident. I am satisfied that the complainant and the original injured witness have voluntarily desire to compound the offence with the Appellant-accused person for sufficient and genuine reasons stated in the affidavit.

In the case of AIR 1988 2111 (SC) State of U.P. Vs. Fazilur Rehman, Badrilal v. State of M.P. Reported in 2005 SCC 1597 Jetha Ram v. State of Rajasthan reported in 2006 (9) SCC 255 , Ishwar Singh Vs. State of Madhya Pradesh, and Manoj and Anr. v. State of M.P. Reported in 2009 (2) GLH 56, the Apex Court while taking into account the fact of compromise between the parties, has reduced the sentence imposed on the accused to already undergone though the offences were not compoundable. Thus, the compounding of offences is legal and valid.

Considering the totality of the facts in the background of the settled legal position, I allow the parties to compound the offences. Thus, the appeal is partly allowed. The impugned judgment and order dated 16th January, 1998 passed by the learned Additional Sessions Judge, Nadiad in Sessions Case No. 146 of 1994 is modified in view of the compromise arrived at between the parties, more particularly the affidavit filed by the complainant - Govindbhai Gotabhai Chavda and the injured person named Gotabhai Chhaganbhai Chavda and also in view of the settled principles of law of compounding the non-compoundable offences to the extent herein below:

The conviction recorded by the Court below is confirmed; however, so far as the sentence part is concerned, the same is modified to the extent that the sentence already undergone by the Appellant-accused shall be treated to be sufficient sentence, in view of the compromise arrived at between the parties. Appellant-original accused is on bail and, therefore, this bail bond stand discharged. The sentence with regard to payment of fine is not disturbed. If the Appellant has not paid the fine amount, he will pay the said amount within a period of four weeks from today. Record and Proceedings, if any, be sent back to the Court below forthwith.